The Commission will examine how the Constitution allocates the powers of beginning, conducting, and ending war.

When armed conflict is looming, debates about separation of powers and the uncertainty they often generate can impair relations among the branches of government, cast doubt on the legitimacy of government action, and prevent focused attention on policy. Armed conflicts with non-state actors and other non-traditional "wars," as well as the courts' involvement in war powers questions, make the Commission's work relevant.

"Few matters are more important to our nation than how we make decisions of war and peace," said former Virginia Governor Gerald L. Baliles, Director of the Miller Center. "But war powers questions have bedeviled a host of Presidents, members of Congress, and judges for more than two hundred years. With its wide-ranging experience, this Commission is uniquely qualified to attempt to provide insights into how best to resolve these difficult questions."

Commission Co-Chairs Baker and Christopher have worked with Governor Baliles to assemble the group (in alphabetical order): Slade Gorton, former U.S. Senator from Washington; Lee H. Hamilton, former Member of Congress from Indiana; Carla A. Hills, former U.S. Trade Representative; John O. Marsh, Jr., former Secretary of the Army; Edwin Meese, III, former U.S. Attorney General; Abner J. Mikva, former Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit; J. Paul Reason, former Commander-in-Chief of the U.S. Atlantic Fleet; Brent Scowcroft, former National Security Advisor; Anne-Marie Slaughter, Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University; and Strobe Talbott, President of the Brookings Institution.

Pulitzer Prize-winning historian Doris Kearns Goodwin will serve as the Commission's historical advisor. John T. Casteen, III, President of the University of Virginia, and David W. Leebron, President of Rice University, will serve as ex officio members. John C. Jeffries, Jr., Dean and the Emerson Spies and Arnold H. Leon Professor of Law of the University of Virginia School of Law, and W. Taylor Reveley, III, Dean and John Stewart Bryan Professor of Jurisprudence at the William & Mary School of Law, have been named Co-Directors of the Commission.

The panel is expected to convene its first meeting April 3-4.

The James A. Baker, III Institute for Public Policy at Rice University, the Freeman Spogli Institute for International Studies at Stanford University, Stanford Law School, the University of Virginia School of Law, and the William & Mary School of Law will serve as partnering institutions.

This essay explores the idea, or rather the mirage, of progress in international law. It does so by examining a specific case study from the Cold War era: the conflict resolution efforts of the Security Council in the aftermath of the 1973 Arab-Israeli war. It is contended that the paralysis that characterized the central peacemaking institution at this point in its history is not unique to the specific moment in time. Rather, the historic case study demonstrates that instances of international law's "progress", as scholars are prone to think of such significant institutional and doctrinal events, are more akin to markers along the meandering route of an empty vessel.

In terms of methodology, this essay traces a parallel between the themes of international law and the short stories of Yiddish writer I.L. Peretz. In particular, the essay uses as a parable Peretz' short story "Yom Kippur in Hell", in which a cantor who chants with a beautiful voice, but who is substantively lacking in devotion, is condemned. It is the theory of the essay that the futility of salvation through empty prayer neatly parallels the futility of progress through empty doctrine, as exhibited by international law.

American Society for Legal History Seeks Nominations for the John Phillip Reid Book Award 2007

Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best book published in English in any of the fields broadly defined as Anglo-American legal history.

For this year’s prize, the Committee will accept nominations from authors, presses, or anyone else. Nominations for this year’s prize should include a curriculum vitae of the author. Nominations should be submitted by May 31, 2007, via e-mail, to the secretary-treasurer of the American Society for Legal History, Professor William P. LaPiana , New York Law School,57 Worth Street, New York, New York 10013 (212-431-2883).

In addition, a paper copy of the book should be mailed to each of the following:

Professor William NelsonNew York University School of Law40 Washington Square SouthNew York, NY 10012

Jonathan Hafetz has a post at Balkinization on the (mis)uses of history in litigation involving Guantanamo detainees. In the D.C. Circuit's ruling in Boumediene v. Bush, Hafetz argues that the court got its history wrong. He writes, in part:

To begin with, the D.C. Circuit treated as an open question whether the writ would historically have extended to a territory like Guantanamo, where the United States exercises complete and exclusive jurisdiction and control, but not sovereignty. That question, however, was already answered by Rasul v. Bush (542 U.S. 466 (2004)). There, the Supreme Court concluded that the “[a]pplication of the habeas statute to persons detained at the [Guantanamo naval] base is consistent with the historical reach of the writ of habeas corpus.” Importantly, in Rasul the Court rejected the government’s argument that the writ’s reach at common law turned on territorial sovereignty rather than on “the practical question” of the crown’s control over the particular territory. The Court relied, for example, on King v. Cowle (97 Eng. Rep. 587 (K.B. 1759)), where Lord Mansfield explained that the writ would run to territories “under the subjection of the Crown.”

There is much more, but Hafetz's bottom line is in his conclusion:

Ultimately, the most compelling historical argument against the MCA is that the concept of a law-free zone at Guantanamo contradicts the writ’s essence as a check against unlawful executive detention. The notion that the President can maintain Guantanamo as a prison beyond the law based on the legal fine print of sovereignty is antithetical to the basic principles habeas corpus and the Suspension Clause embody. It does not take a historian to recognize this much.

Aspiring legal historians will have an interest in the list of Teaching Fellowships for Aspiring Law Professors compiled by Paul Caron at TaxProf Blog. Legal historians might look to these programs as a way to work with established legal historians before entering the teaching market. Fellowships at Yale, Harvard and other "top ranked" schools are an obvious draw, but there are also advantages to seeking a fellowship at a school because you have an interest in working with a particular scholar. At smaller schools, a fellow may be more integrated into the daily life of the law school, and feel less of an outsider. The University of Iowa, for example, has an excellent Faculty Fellow program, and an opportunity to work with Herb Hovenkamp, who I know to be a kind mentor to new teachers. Dean Carolyn Jones isa tax historian, John Reitz is a superb comparativist, and there are Wendie Schnieder and others. At the University of Alabamaare legal historians Al Brophy, Wythe Holt and Tony Freyer. At Fordham, there are many faculty interested in legal history, including Martin Flaherty, Robert Kaczorowski, and Dean William Treanor. One caveat: if you are choosing a fellowship because you would like to work with a particular scholar, be sure that she or he will be in residence during your fellowship.

Peter K. Yu, Michigan State, has posted a new article, bringing the history of technology and its regulation into legal history, New Media at the Turn of the Century. The article is forthcoming in a symposium issue of the Minnesota Journal of Law, Science & Technology. Here's the abstract:

In recent cases, the United States Supreme Court has shown great care and vigilance in protecting free speech on the Internet. It is therefore common to take for granted the Court's protective stance on protecting free speech on the Internet. After all, the Internet is the new, new thing; it deserves the Court's utmost attention and protection. However, when these cases are juxtaposed with the Court's earlier cases concerning free speech and free press protections in the motion picture--the new, new thing of the past century--the two lines of cases reveal that the Court has taken a dramatic different approach in its treatment of new technologies. The study of these earlier cases not only enables one to gain a greater appreciation of the Court's current protective stance toward the Internet, but also leads one to wonder whether the Court's different approaches could be attributed to the complex interplay of law, technology, and society.

As part of the Symposium on a general theory of law and technology, this article begins by tracing the development of free speech and free press protections of motion pictures. Although the article recounts the painful history of movie censorship in the first half of the twentieth century, it does not seek to rehash the many arguments made by First Amendment scholars elsewhere. Rather, it offers a thick description to show that legal, technological, and social factors have both shaped and been shaped by each other and how a confluence of these factors affected the free speech and free press protections of motion pictures.

The article then offers three deterministic accounts to explain the Court's different treatment of the Internet: technological determinism, legal determinism, and social determinism. Showing that none of these accounts fully explains the Court's differing approach in the recent Internet cases, the article underscores the need for a holistic and integrated approach to the study of law, technology, and society. This Article concludes by offering some preliminary observations on what a general theory of law, technology, and society should and should not be about. It also explains the importance of the development of such a theory.

In Fall 2005, race riots in France drew attention to differences between the French and American legal regimes for remedying racial inequality and discrimination. The riots reacted to the persistence of employment discrimination against people of North African origin. French antidiscrimination law has been unable to solve such problems because of its focus on criminal punishment of racist speech and its uncompromising commitment to race-blindness. These features embody the intersection of two historical forces: the influence of Vichy memories on French legal conceptions of racism and discrimination, and the strong republican resistance to social distinctions. Understanding this history comparatively brings certain features of U.S. antidiscrimination law into sharper focus: U.S. law imposes civil, rather than criminal liability, and is more tolerant of race-conscious affirmative action, more resistant to regulating racist speech, and more reluctant to extend antidiscrimination law to a wide range of protected characteristics. These distinctive features of U.S. law are explained by the law's reaction to the history of slavery and segregation. The different evolutions of antidiscrimination law reveal how particular forms of racism – anti-Semitism and genocide in France, and the slavery and segregation of African Americans in the United States – gave rise to two very different antidiscrimination regimes. The French contrast challenges the assumptions of American antidiscrimination law, leading to greater precision about the uniquely American commitment to race-blindness in equal protection doctrine. The stricter French model of race-blindness highlights the instability and ambivalence of American race-blindness. Comparative historical inquiry reveals that the goal of eradicating group subordination does more work in U.S. antidiscrimination law than the goal of achieving a truly race-blind society based on individual merit.

In 2007, the William Nelson Cromwell Foundation will make available a number of awards intended to support research and writing in American legal history. The Cromwell Foundation was established in 1930 to promote and encourage scholarship in legal history, particularly in the colonial and early national periods of the United States. The number of awards to be made in any year, and their amounts, is at the discretion of the Foundation. In the past two years, the trustees of the Foundation have made three to five awards annually, in amounts up to $5,000. Preference will be given to scholars at the early stages of their careers. The Society's Committee on Research Awards and Fellowships reviews the applications and makes recommendations to the Foundation.

In 2007, the American Society for Legal History will once more make available the Paul L. Murphy Award, honoring the memory of Paul L. Murphy, late Professor of History and American Studies at the University of Minnesota and distinguished scholar of U.S. constitutional history and the history of American civil rights/civil liberties. The Murphy Award, an annual research grant of up to $1,500, is intended to assist the research and publication of work byscholars new to the field of U.S. constitutional history or the history of American civil rights/civil liberties. To be eligible for the Murphy Award, an applicant must: (1) be engaged in significant research and writing on U.S. constitutional history or the history of civil rights/civil liberties in the United States, preferably employing multi-disciplinary research approaches; (2) hold, or be a candidate for, the Ph.D. in History or a related discipline; and (3) not yet have published a book-length work in U.S. constitutional history or the history of American civil rights/civil liberties, and, if employed by an institution of higher learning, not yet be tenured. [Pictured is the best image I could find of one of Murphy's books, World War I and the Origin of Civil Liberties in the United States.]

Applicants for both the Cromwell Fellowships and the Murphy Award should submit a three to five page description of their proposed project, a curriculum vita, a budget, a timeline, and two letters of recommendation from academic referees. There is no application form. The committee would prefer to receive all materials in electronic form, via email.

Applications must be received no later than June 30, 2007. Successful applicants will be notified in mid-November, 2007.

This essay reviews four books that, among the spate of books on empire in the past few years, shed especially illuminating light on the law of Anglo-American empire during the past three centuries. Part I describes the central tenets of one of the new poles in the early-twenty-first-century constitution of empire: the idea of the imperial executive as advanced by the constitutional lawyer John Yoo in his book, The Powers of War and Peace. Part II turns to two historico-imperial analogies that animate arguments for the imperial executive; in particular, Part II addresses lawyer-historian Daniel Hulsebosch’s Constituting Empire and historian Niall Ferguson’s Empire in order to assess the strengths and limits of analogies between the governance of the British Empire and the idea of the imperial executive. Part III takes up A Jurisprudence of Power, a book by historian R.W. Kostal on the martial law controversy in Jamaica in the 1860s. Kostal’s implicit suggestion is that the overarching continuity in the Anglo-American law of empire over the past 150 years has been the centrality of legal language in moral argument about empire and its virtues, vices, and exigencies. Part IV compares the British imperial constitution with its American counterpart in the early twenty-first century.

The conclusion relates the constitution of the British Empire to the U.S. Supreme Court’s efforts — successful or not, we cannot yet know — to rein in the poles of the debate and to establish boundaries for the legal frame of Anglo-American empire. The Court’s great challenge is that the institutions and discourse of American constitutional law make available a much wider array of possible moves in constitutional argument than the U.S. Constitution’s British antecedents ever did.

For the review itself, available on-line, click here. For a recent review of Kostal, A Jurisprudence of Power, in the Law and Politics Book Review, click here.

"Something about the scene with the dog made me first laugh, then shake my head. It wasn’t the Hollywood hokeyness; it was that the dog looked too well-fed." So begins Noriko Manabe's thoughtful essay on History News Network, "Rewriting Someone Else’s History: The Japanese Response to 'Letters from Iwo Jima.'" "World War II remains a subject largely avoided by Japanese films. It has simply cut too close; practically all Japanese alive then lost someone in the battles or the firebombs," she writes. Clint Eastwood's film ranked only 16 in the U.S. as of February 4, but ranked first in Japan for five weeks. Still, the film raises questions, Manabe writes, about "rewriting someone else's history." Among Japanese,

The greatest concern is that the film fails to explain why the Japanese felt the need to defend a seemingly insignificant island so fervently – the fear that the firebombing of Japanese cities, already devastating to civilians, would intensify were the Americans to gain Iwo Jima as a launching pad for air strikes. In not explaining this background, viewers felt that the film catered to the stereotype of the Japanese as lemming-like fanatics.

I learned from legal historian Al Brophy, via MoneyLaw, of the death of historian Winthrop Jordanlast Friday. Jordan was professor emeritus of history and African-American studies at the University of Mississippi. According to the university, he died at his home Friday (Feb. 23) after a long illness. From the U of M website:

As part of its 50th anniversary, American Heritage magazine ranked "White Over Black" as the second-best book of all time in African American history, second only to W.E.B. DuBois' "Souls of the Black Folk."

THE FIRST WOMEN LAWYERS shows the roles that individual women (and to a lesser extent men) played in the establishment of gender equality within the legal professions....Mossman begins by asking “to what extent did women become lawyers without challenging the gender premises of the law and the legal professions?” (p.7). Her answer, demonstrated through the stories of the first women lawyers in the United States, Canada, Britain, New Zealand and Australia, India and Europe, shows that the extent varied. However, certain legal arguments and approaches are found in common among these jurisdictions. For instance, a majority of these women identified themselves as lawyers first, and women second, thus placing many of them in a position where their individual victories ran counter to the larger struggle for women’s equality occurring around them during the late nineteenth and early twentieth centuries....

Mossman also adds to the debate regarding judicial activism by demonstrating how gender reform was often not obtained through the judicial process (despite some decisions, particularly in the lower courts) and required legislation for women to gain formal recognition. Repeatedly, institutional constraints these women faced were often only overcome through legislation. Interestingly this legislation frequently allowed women to be admitted to the bar ‘on the same terms as men’ which served to further the male norms institutionalized into the legal professions (p.72). Cases, often based upon the interpretation of words such as “person” and whether the term “male” included females, point to debates over issues such as textualism, legislative intention and use of precedent (both foreign and domestic). Despite various methods of decision-making, case results showed consistent judicial restraint to maintain male dominance of the legal professions.

2007 SILBERMAN SEMINAR FOR LAW FACULTY“The Impact and Legacy of the Holocaust on the Law”June 4-15, 2007

The Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum announces the 2007 Silberman Seminar for U.S. law faculty teaching or preparing to teach courses on constitutional and international law and related legal fields, who endeavor to draw lessons from or develop themes based on the Holocaust and other genocides. The objective of the 2007 Silberman Seminar is to strengthen participants’ knowledge of the impact of the Holocaust on the development of domestic and international law.

This looks like a superb opportunity. For my previous post, with more details and links, click here.

In a recent paper, The Origin the Compelling State Interest Test and Strict Scrutiny, I argued that strict scrutiny did not originate in the Equal Protection Clause. Rather, it originated in the First Amendment in the late 1950s and early 1960s and that it migrated from there to equal protection litigation in the late 1960s.

In this paper, I argue that once it is appreciated that strict scrutiny originated as a First Amendment doctrine, we can - by taking a closer look at First Amendment history - come to appreciate strict scrutiny as the clear and danger test reborn and transformed. It was in the cases establishing strict scrutiny in the First Amendment that the Supreme Court dismantled McCarthyism, ended the reign of deferential civil liberties jurisprudence, and revived the danger test in a new and different guise. The “real” Warren Court dates from these opinions.

When strict scrutiny was first enunciated in the mid-1960s in First Amendment litigation, commentators initially noted its roots in the pre-McCarthy era clear-and-present-danger precedents. By forgetting that connection, modern scholarship has missed an opportunity for a more nuanced understanding of strict scrutiny's history, jurisprudence, and role in American constitutional law, which this article explores.

In 1988, Professor Heald found a lost manuscript of Steve Allen's groundbreaking television show, “A Meeting of the Minds.” In that episode, published in 6 J. of Law & Rel. 279, Oliver Wendell Holmes, Mark Kelman, Blaise Pascal, and Richard Posner discussed the nature of law. While completing renovation of a house, possibly visited by Allen, Heald recently found another manuscript jammed on top of an old water tank. The present episode reveals a lively discussion of Columbine, the death penalty, and the nature of retribution between Lucius Annaeus Seneca (4 B.C.-65 A.D.), C.S. Lewis (1898-1963), Jerry Falwell, and Milner Ball.

In THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE, Bartholomew H. Sparrow offers a detailed account of the Supreme Court’s handling of the numerous constitutional questions created by the emergence of an American colonial empire. A political scientist, Sparrow has produced an impressively researched and detailed work of political and legal history that accomplishes three significant tasks: first, it situates the decision to acquire overseas colonies within its contemporary political context and within the larger context of American territorial expansion; second, it describes in detail, analyzes, and offers an account of the public reaction to the thirty-five cases he classes among the Insular Cases; finally, it draws some conclusions about the nature of the empire America acquired at the turn of [*177]the twentieth century, parts of which it continues to administer today. Sparrow’s largest ambition for the work is “to move the Insular Cases back into prominence, to encourage their return to the legal ‘canon’ of Supreme Court cases -- that is, to add them to the list of recognized Supreme Court cases essential for and familiar to students of constitutional law and U.S. political history” (p.10).

Sparrow’s account charts the path traversed by the Supreme Court and by the American polity from its initial state of bitter conflict over the constitutional status of the insular territories to the emergence of a consensus that has become so comfortable that the Insular Cases, which loomed so large when they were first decided, have now fallen into that obscurity from which Sparrow seeks to rescue them. Sparrow aims to unsettle complacency about the constitutional status of our remaining colonial possessions, both by reminding us of the powerful arguments for the constitutional roads not taken and by drawing attention to the moral ambivalence of the constitutional resolution we have reached.

Zvi S. Rosen has posted an article, The Twilight of the Opera Pirates: A Prehistory of the Right of Public Performance for Musical Compositions, forthcoming in the Cardozo Arts & Entertainment Law Journal. An earlier version of this article was awarded first prize in the Marcus B. Finnegan Competition for best paper in intellectual property law at the George Washington University, where the author received an LLM. Mr. Rosen lists no affiliation on his SSRN page, but his article indicates that he is currently a judicial law clerk. To access his SSRN e-mail, click here. Here's the abstract:

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America's first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance became more and more obvious as a result of litigation, especially that surrounding the Gilbert and Sullivan operetta The Mikado. In the mid-1890s the right was once again proposed in an omnibus revision that died in committee, the Treloar Copyright Bill. Simultaneously though, this right went through Congress and was passed as part of an amendatory act which also increased penalties for all unlawful public performances (including drama). This article traces the history of these acts and the litigation in the later nineteenth century, telling a story that has heretofore not been told – the prehistory of the right of public of public performance for musical compositions.

Exploration of women's issues in Vietnam strengthens the emerging voice of the “exotic other female” in contemporary international feminist discourse. Any women's movement in Vietnam today must be caste as the revitalization of the Vietnamese women's collective cultural identity, rather than as a Western imported feminist doctrine. The Vietnamese women's collective cultural identity is based on the history and cultural folklores of Vietnam, including expressions of feminist ideas in law and literature and a long history of warfare and collective sufferings, wherein women have been seen as martyrs, national treasures, and laborers in war and in peace.

The advocacy of gender equality in Vietnam today is limited by eight “risk factors.” First, Vietnam's strong matriarchal heritage that persisted through its early history has at times led to the disingenuous proposition that Vietnam has no need for a feminist movement. Second, Vietnam's repetitive, prolonged war and poverty have together overshadowed gender issues. Third, women's movements in Vietnam have not evolved into a doctrine with a structured basis that is independent from nationalism, socialism, or literary movements. Fourth, gender equality in Vietnam has become entangled in what this Article describes as the “fallacy of a trio,” in which gender equality becomes synonymous with nationalism and socialism. Fifth, the rule of law in Vietnam has traditionally been considered secondary to customs derived from the oppressive values of Vietnamese Confucian society and the autonomy of the Vietnamese agricultural villages. Sixth, women's rights advocacy has been caught up in the “universality versus cultural relativism” discussion, further complicated by the question of whether there should be “Asian-styled gender rights” in Vietnam. Seventh, Vietnam, despite its age, is a new nation with a wide variety of philosophical bases, legal traditions, and paradoxical values. Finally, the single-party political system of modern Vietnam renders any feminist movement susceptible to Party politics.

The limitations on advocacy for gender equality are illustrated by the shortcomings of Vietnam's Year 2000 National Action Plan, which attempted to address women's issues in the aftermath of the United National Fourth World Conference on Women held in Beijing in 1995. While the reassertion of cultural identity can effectively empower Vietnamese women, the feminist advocate must approach cultural identity with caution in order to avoid the semantic traps of euphemism, empty ethnocentrism, and unhealthy preoccupation with the past that can impede progress for the future.

The significance of Roman law for the evolution of international law is an issue as complex as it is contentious. It has two main dimensions: the continuity between Roman 'international law' and that of later times and the impact of Roman private law on the further development of international law. As several legal historians and international lawyers of the 20th century - among whom Hersch Lauterpacht is foremost - have indicated, this historical debate is overshadowed by concerns about current international law.

In this article, the works of four Anglo-American historians of international law from the 19th century are analysed in relation to Roman law. These early historians of international law all viewed the question of the Roman contribution to modern international law in terms of their understanding of that law. As was the case during the 20th century, and as Lauterpacht had claimed, the discussion on Roman law reflected the great debate between positivists and naturalists. Of course, each waged the debate in the terms of his day and age. None of these authors reduced international law to the positive public international law of the 19th century, based upon the sovereign state. None of them was over-concerned with consensualism and voluntarism, at least not directly. The central issue was the other one Lauterpacht had forwarded: the question whether States were subjected to the same morals and laws as individuals.

"It's not America's enemies who hate the United States most, it's people in countries that are supposed to be America's friends, if not allies."

So writes Niall Ferguson, Harvard history professor, in today's London Sunday Telegraph, my airplane reading on the way home today. "Hatred of America Unites the World," is the op-ed's headline, but what is interesting is, as Ferguson puts it, the question of "who hates Americans the most?" It's not the countries that Americans fear the most, Ferguson writes.

According to a poll by Gallup's Centre for Muslim Studies, 52 per cent of Iranians have an unfavourable view of the United States. But that figure is down from 63 per cent in 2001. And it's significantly lower than the degree of antipathy towards the United States felt in Jordan, Pakistan and Saudi Arabia. Two thirds of Jordanians and Pakistanis have a negative view of the United States and a staggering 79 per cent of Saudis. Sentiment has also turned hostile in Lebanon, where 59 per cent of people now have an unfavourable opinion of the United States, compared with just 41 per cent a year ago. No fewer than 84 per cent of Lebanese Shiites say they have a very unfavourable view of Uncle Sam.

These figures suggest a paradox in the Muslim world. It's not America's enemies who hate the United States most, it's people in countries that are supposed to be America's friends, if not allies.

That's not all. By 2006, the Pew Global Attitudes Project reported that the proportion of British people who had a favorable view of the United States "had fallen to 56 per cent. British respondents to the Pew surveys now give higher favourability ratings to Germany (75 per cent) and Japan (69 per cent) than to the United States - a remarkable transformation in attitudes, given the notorious British tendency to look back both nostalgically and unforgivingly to the Second World War."

Ferguson concludes that "it's lonely at the top." To read more, click here.

the remarkable story of...two escaped slaves, who fled the U.S. South and found their way to Canada by way of that clandestine system of transport we now know as the Underground Railroad. The book is part of an important new emerging genre of a rescued African Canadian past that also includes work by Afua Cooper (The Hanging of Angélique) and Lawrence Hill's engaging fiction, The Book of Negroes.

In 1831, Thornton Blackburn conspired to leave his master's home in Louisville, Ky., and make his way to freedom when it was revealed that his new bride, Lucie, was to be sold "down river." Their passage on the steamboat Versailles, facilitated by the use of forged documents, and their arrival, settlement and subsequent incarceration in Detroit, is told in painstakingly researched detail through the use of period documents and narratives of the period that construct a story that was never actually told. That is, Thornton Blackburn himself remained illiterate all his life, and there is very little oral history that Smardz Frost could glean from to provide first-person narrative.

And so, perforce, there is conjecture, surmise and imagining, based on numerous extant narratives from manumitted Africans who lived in the same region of the South, personal diaries, letters, newspaper accounts, family wills, primary court documents etc., all combined in a meticulous weave that drives the story forward.

The National Constitution Center in Philadelphia hosts a discussion of the Supreme Court with Jeffrey Rosen and Jan Crawford Greenburg, who have both written new books about the nation’s highest court. In his book, "The Supreme Court," Mr. Rosen explores how the personality and style of justices influence their decision-making. In "Supreme Conflict," Ms. Greenburg shares insights into the Rehnquist and Roberts courts gleaned during her years as a court reporter.

Jeffrey Rosen teaches law at George Washington University. He’s the legal affairs editor of The New Republic. His books include "The Most Democratic Branch," "The Naked Crowd," and "The Unwanted Gaze." Jan Crawford Greenburg covers law and politics as an ABC News correspondent. She was previously the Supreme Court analyst for the NewsHour with Jim Lehrer on PBS and for Face the Nation on CBS. She is a graduate of the University of Chicago Law School.

For the Book TV listing, click here. For previous posts on both books, click here and here.

In Ex parte Merryman, Chief Justice Taney famously rejected President Lincoln's power to unilaterally suspend the writ of habeas corpus in and around Baltimore at the outset of the U.S. Civil War. According to Taney, only Congress can provide for suspension of the writ, and Congress had not so provided. Just one year later, though, the Vermont federal circuit court held, in Ex parte Field, that the suspension of habeas corpus is necessarily coincident to the imposition of martial law. Because President Lincoln had the statutory authority to impose martial law by virtue of the so-called Militia Acts, Field concluded, Congress had effectively, if not explicitly, given sanction to Lincoln's suspension of habeas in those areas where martial law was validly in force.

This Article attempts a thorough reconstruction of the "Field theory," beginning with the facts of Merryman itself before moving to the pre-Civil War precedents on which the decision in Field relied. As it concludes, the President's authority to impose martial law in crisis situations does in fact derive from the Militia Acts, and there is at least a colorable argument that Baltimore was under martial law at the time Merryman was decided. More importantly for present purposes, though, the Article analyzes the deep and profound questions as to the substantive preconditions for the imposition of martial law through the lens of the modern-day Insurrection Act, concluding that the statutory framework, in current form, does not adequately demarcate the point past which martial law is appropriate. Because Congress has the power to provide for the calling forth of the military to respond to domestic crises, Congress can provide for greater accountability - especially at the end of the next emergency - and, the Article concludes, Congress should do so.

Through an investigation of the historical and political context that led to the drafting of the Establishment Clause, this article attempts to demonstrate that the original meaning of the Establishment Clause pertains to federalism.

Part I reviews the leading “originalist” interpretations that have been set forth by members of the Supreme Court. Part II begins my attempt to recover the original meaning of the Establishment Clause through an investigation of the historical and political context in which the Establishment Clause emerged. Part III offers a detailed analysis of the drafting of the clause in light of the historical and political contexts described in Part II. I conclude that Justice Thomas's federalism interpretation most accurately captures the Establishment Clause's original meaning. In his Newdow opinion, however, Justice Thomas failed to consider the implications of his federalism construction, which is the subject of Part IV of this article. Recovering the Founders' original concern with federalism necessarily means that the original intention that animated the adoption of the Establishment Clause cannot be applied to modern day incorporated “no-establishment” jurisprudence.

For more recent scholarship on the religion clauses in the early days of the nation, click here.

Assaf Likhovski, Tel Aviv University, School of Law has posted a new paper on SSRN, Two Horwitzian Journeys. Here's the abstract:

This festschrift article describes two projects inspired by Morton Horwitz's The Transformation of American Law, 1780-1860 (Transformation I). Both projects tell the story of the transformation of Transformation I, as it migrated to non-American legal contexts and as its historiographical questions and interpretations were transformed due to the encounter with non-American materials. One project examines the history of the judicial law making in a colonial context - that of British-ruled Palestine in the early 20th century, and the other is a comparative examination of the history of tax avoidance decisions in the UK, the United States and Israel in the early and middle parts of the 20th century.

Both projects described in the article attempt to answer the question what factors influence judicial decisions? Both seek to show that class and economic interests, at least in some contexts, are not the major factor that shaped the case-law. The article is thus an opportunity for me to look back on more than a decade of work and reflect on how my work has been, to a large extent, an attempt to revisit the Horwitz thesis outlined in Transformation I, taking some explicit and implicit questions that Horwitz posed in that book, shifting their focus from legal doctrines and their economic effects to judicial minds and their relationship to culture and public opinion, and examining them in a number of non-American contexts. The ultimate lesson of this experience, I will conclude, is that the Horwitzian journey, a journey which seeks to study the links between politics and judge-made doctrines, is at once an inconclusive yet also a rewarding pursuit.

Friday, February 23, 2007

Andy Warhol painted this portrait of Louis Brandies in 1980, as part of his series "Ten Portraits of Jews of the Twentieth Century." The portrait was recently acquired by Brandies University. The University has on display the ten portraits series, assembled together for the first time, as part of its celebration of Louis Brandeis' 150th birthday. For info, click here. For details on the Brandeis portrait, click here.The Justice Brandies Jubilee schedule of events at Brandeis is here.

A piece of jurisprudential sleuthing, this article uncovers the back story for a puzzle unanswered by legal historians for some eighty years: Why would the free-speech libertarian Louis Brandeis write the most famous paean to First Amendment normative values in his opinion in Whitney v. United States, and yet join (by way of a concurring opinion) the judgment of the majority of the Court that would have sent the “patrician radical” Anita Whitney to prison for a 14-year term solely for participating in the formation of the California Communist Labor Party? Part of the puzzle is provided by the unpublished Brandeis opinion in Rutherford v. Michigan, which is provided as an appendix to the article.

In Courts and Federalism, Gerald Baier "seeks to revive the study of judicial review as a structural element of Canadian and comparative federalism" (p. 3)....The bulk of the book is concerned with providing an account of the design and interpretation of the three classical federal constitutions:the American, the Canadian and the Australian. The pioneering U.S.Constitution of 1789 employed the single- limiting-list approach to dividing powers, with Congress being assigned a specified number of powers while the states retained a broad residual power. Understandably phobic in the 1860s about things American, the Canadians opted instead for a dual-list approach, with unspecified powers being retained by Parliament. Looking very favorably upon the American design and directing their phobias at the British North America Act's apparent centralism a further three decades later, the Australians swung wholeheartedly back to the single-list approach.

The course of judicial interpretation is well known....Operating from London, the Judicial Committee of the Privy Council(JCPC) played a distinctive role in imposing an interpretation of Canadian federalism that went strongly against apparent design intentions and the expectations of its founders (though not necessarily against social and political realities). To do this, it had to craft a doctrine that would neutralize Parliament's potentially plenary power to"make laws for the peace, order and good government" of the country(POGG). The POGG clause was relegated to the status of reserve power for national emergencies. As in the American case, this forceful jurisprudence culminated in a confrontation over extensive new national policy claims during the Great Depression. In the short term the outcome was very different and the political branches were obliged to take the alternative path of formal constitutional amendment. In the longer term,though, the outcome it was similar--with the JCPC having to cede its role altogether to its domestic counterpart, the Supreme Court of Canada. In Australia, the judiciary's attempt to hold the line against centralization lasted only two decades. In 1920 the Engineer's case introduced what Baier describes as a "meta-doctrine" of literalism, the consequence of which was to preclude any reading of the constitution that privileged its underlying federal intent.

In A Well-Regulated Militia, Saul Cornell challenges [conventional] accounts of the Second Amendment's meaning first by historicizing them, and then by introducing an alternative theory that he contends more accurately captures eighteenth-century conceptions of the right to bear arms....

Cornell argues that neither the individual- nor the collective-rights model offers a complete account of the meaning of the Second Amendment. Both these conceptions, he maintains, arose in the nineteenth century, in the context of later debates concerning the role of gun use and ownership in the United States. In the place of what he regards as these anachronistic interpretations, Cornell offers a "civic" model of the Second Amendment. According to this civic conception, the "original understanding … guaranteed that citizens would be able to keep and bear those arms needed to meet their legal obligation to participate in a well-regulated militia" (p. 2). The civic model thus linked arms-bearing with citizenship by creating a particular constitutional right distinct from common-law rights of self-defense and dependent on the individual's right and duty to participate in the militia.Viewed in light of this civic theory, the aim of the Second Amendment was "protecting the militia against the danger of being disarmed by the government" rather than "protecting individual citizens' right of personal self-defense" (p. 4)....

Along the way, LaCroix raises a question:

Even if modern commentators make claims regarding the original understanding of the Second Amendment, why is this the best lens through which a historian should view the twists and turns of the centuries-long debate about the place of guns in the American constitutional system?

For many years, the reigning view among scholars was that the Fourteenth Amendment was never understood (except by a few “eccentric” or “confused” figures) to “incorporate” or nationalize the entire Bill of Rights so as to apply it to the states. This modern conventional view was developed primarily by Charles Fairman and Stanley Morrison in 1949, and defended by Raoul Berger from 1977 to 1997. A revisionist, pro-incorporation view was expressed by Justice Hugo Black (and three colleagues) in Adamson v. California (1947), echoing the late-19th century view of the elder Justice John Marshall Harlan, and defended by William Crosskey in the 1950s and Alfred Avins in the 1960s (among others). Michael Curtis, starting in 1980, led a renewed wave of revisionist scholarship, joined by Akhil Amar, Richard Aynes, Earl Maltz, and Stephen Halbrook (among others) in the 1990s.

Few scholars would dispute that the modern conventional account has been severely challenged. Many have been persuaded that Black (and the “eccentric” Justice Harlan the elder) were right all along. But some still reject or question the legitimacy of the “incorporation doctrine.” Hence the purpose of this article. It demonstrates the truly shocking and inexcusable extent to which Fairman, Morrison, and especially Berger mishandled the evidence and profoundly misunderstood the meaning of the Fourteenth Amendment. The extent of their scholarly malpractice has not been fully or adequately explored until now. This makes it especially disturbing that their works remain amazingly influential, decades after they were largely debunked. Fairman's 1949 article, in particular, has been viewed as a “classic” for more than half a century. It is one of the most-cited law review articles of all time.

Surprisingly, my research has shown that there is still a great deal new to say about the original understanding of the Amendment in 1866-67. I have found relevant original source materials never adequately analyzed before. These include a May 1866 New York Times editorial published two days after the Amendment was introduced in the Senate, and an essay by a Kentucky state judge published during 1866-67 that suggests the goal of nationalizing the Bill of Rights may have been widely understood during the ratification period.

This article, following up on two articles I published in 2000, is part of a broader project that will include several forthcoming articles, to be eventually combined into a book.

Richard Albert, Oxford University, has posted an article that was published recently in the Louisiana Law Review, Religion in the New Republic. Here's the abstract:

Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine - incoherent though it may be - is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate - a conversation that has yet to cede center stage in the American public square.

Tuesday, February 20, 2007

I will try to check in, but you may need to do without new posts for a few days. There is always Arts & Letters Dailyfor the latest reviews. Many thanks to readers for tips on WiFi in Oxford and London. Blogging will be back to normal Monday of next week.

Nina Shandler presents a thoughtful and often entertaining look at an unusual chapter in World War II history. THE STRANGE CASE OF HELLISH NELL is a studied look at the efforts of British authorities to use the legal system to silence Helen Duncan, a purported psychic, who was demonstrating uncanny accuracy in revealing otherwise secret war information such as ship movements....

What makes the story of Helen Duncan particularly interesting is the way the trial is juxtaposed against the backdrop of the war. Sahndler explores the absurdity of the events by beginning the book with a review of Winston Churchill’s own disbelief concerning the preoccupation of members of the government with the case while the war rages about Europe. The thematic contrast of the trial with the war continues, as Shandler regularly interrupts the story with notes concerning the state of the war. At one point, the Supreme Court is debating the difference between conjuration and witchcraft as Allied troops land in France. As an historical event, the witch trial seems likely to have been a footnote to far more important events. Yet understood in the context of the time, the trial was much more. Shandler notes that publicity about the trial in Britain briefly replaces war news, such as the advance of Soviet troops in the east.

David Quigley's Second Founding: New York City, Reconstruction, and the Making of American Democracy is an inspiring history of post-Civil War Manhattan. Focusing on debates about equality, freedom, and representation, Quigley links New York history with the nation at large and examines it as a seismograph for nationwide political developments, the effects of which can still be felt today. The historical meaning of the city as a contested space where cultures meet and classes clash predestine it to be a site for scholarly investigation of U.S. democracy. The book's national scope is ambitious yet immediately becomes plausible, given the fact that Reconstruction politics were lastingly influenced by New York politicians and activists, and the mass media. The author shifts from Philadelphia, symbolically America's central eighteenth-century city, to nineteenth-century Manhattan, which had become the nation's stage where the "rules of the democratic game" were negotiated in often dramatic ways (p. ix). By constructing such a historical vanishing point, one runs the risk of establishing a quasi-mythical perspective which neglects the city's dependency not only on the Washington legislature but also, for example, on developments in more remote areas of the Reconstruction South. However, Quigley avoids such an imbalance: Second Founding is a careful remapping of the city as both a microcosm of the nation and an early announcement of things to come. As part of a scholarly discourse that seeks to reconstruct the postwar era through local histories, it provides a starting point for work that seeks to link the local to the national and, as Quigley's next book evidently promises, to the international.

Periodically, President George W. Bush has made far reaching claims for unilateral executive power as Commander-in-Chief in the “War on Terror.” So, scholarly commentary on the subject of presidential power is timely. Professor Michael Paulsen has claimed that the president has vast and largely unchecked powers to deal with times of great crisis - by virtue of his oath to protect the Constitution. He supports that claim by appealing to the constitutional analysis espoused by Abraham Lincoln when he faced the crisis of the American Civil War. “If I am wrong [in my claims for vast and largely unchecked executive power],” Paulsen writes, “Lincoln was wrong.”

In this response to Paulsen, Michael Curtis argues that there are compelling reasons not to accept some of Lincoln's actions and justifications as a precedent. He reviews Lincoln's actions in the Vallandigham case - suppressing anti-war speech that advocated peaceful political action - and concludes that Lincoln's actions were quite wrong. Understanding why helps to show why citing Lincoln to support the “anything-to-win” - with-the-president-as-the - judge-of-necessity approach is deeply flawed. Indeed, it is so flawed that even Lincoln repudiated it on the issue of suspending elections if necessary to win. Meaningful elections require free speech and other guarantees that support democracy, such as habeas corpus and criminal procedure guarantees. So, recognizing an exception for free and meaningful elections entails much more than simply voting. Paulsen suggests Lincoln's theory in the Vallandigham case is consistent with modern free speech doctrine. That, however, is a mistake.

The article also discusses and disputes the often suggested idea that we suppress for brief periods in times of crisis, but the suppression has no long term negative effects. Of course, the war on terror crisis may continue for hundreds of years. More fundamentally, repression does often facilitate later repression, as the Civil War and World War I episodes show. While the World War I repression did soon end, that is not always so. The experience of suppression of free speech and democracy in the South interest of slavery and later in the interest of maintaining the racial caste system shows that repression can last for more than a century. We do not necessarily quickly and spontaneously spring back.

The argument goes as follows: The Cold War, although unpleasant, was inherently stable. It was a bipolar world — centered on Washington and Moscow — and, as UC Berkeley political scientist Kenneth Waltz argued, it was much more predictable than, say, the shifting, multipolar world of the 1910s or 1930s, decades that werefollowed by calamitous wars. Yes, it's true that the two sides possessed masses of nuclear weapons aimed at each other's biggest cities, but the reality is that they were constrained by a mutual balance of terror....

Today's world is far less stable and indeed much less favorable to the comfortable Western democracies. It is not just that we face an almost-impossible-to-manage "war on terrorism," with all of its capacities for asymmetrical damage to ourselves, our allies and everyone else, even as we swat the occasional terrorist group. It is not just that we are deeply mired in Iraq and Afghanistan and that the whole Middle East may totter because of the failure (one hopes not, but let's not blink) to win on the ground....

The first Conflicts Restatement (1934) and its drafter, Professor Joseph Beale, have been the favorite punching bags of every conflicts teacher, well before the Restatement was toppled by the conflicts revolution of the 1960s. Because history is often written by the victors, it is worth asking whether Beale and his Restatement were as bad as their reputation.

This Article is not an attempt to rehabilitate them. Rather it is a necessary historical journey undertaken with all the trepidation of a traveler who expects the worst but hopes for at least some small pleasant surprises. It revisits Beale and the Restatement in the context of their own time–the 1920s–and examines Beale's life and work, the state of American conflicts law before him, the criticisms of his contemporaries, and the imperfect process that produced the Restatement. For the impatient reader, the short answer to the above question is that, generally, the bad reputation is deserved. However, the journey is rewarding for what one discovers along the way.

Without Beale, there would not have been a Conflicts Restatement and, primarily because of Beale, the Restatement could not have been any better than it was. Even so, it is not clear that American conflicts law would have been better of without a Restatement at all. The prevailing view that the Restatement impeded the development of American conflicts is partly offset by some byproducts of the Restatement process. The Restatement is the beginning of modern American conflicts law. Although it is better to start on the right foot, sometimes starting on the wrong foot is better than not starting at all. The Restatement unified and systematized the previously scattered and neglected conflicts law, brought it to the attention of bar and bench, earned for it a place in the curriculum of all law schools, and galvanized the opposition among the legal realists and other academics. In turn, this led to the production of outstanding scholarship that brought the renaissance of American conflicts law during the next generation and eventually the conflicts revolution. Understanding the Restatement and the forces that produced it is essential in understanding the revolution, but also in avoiding similar mistakes in the future.

Selections from Beales' 1935 Conflict of Laws treatise are available on-line, here.

I intend to show in this study that Mark Twain's adventures of Huckleberry Finn was inherently shaped by, among other factors, a number of momentous decisions of the Supreme Court. These were decisions which strived to project the American society of the ante-bellum period into the post-bellum world. The decisions of the Supreme Court in the post-bellum period, coupled with a severe change in the political and social atmosphere of the late 1870s and early 1880s, combined to create an environment of severe retrogression, specifically when it came to racial integration and interactions. As this Essay will show, the Supreme Court's decisions in this series of cases, while widely believed to have been wrongly decided today, nevertheless had a great deal of influence in halting or stalling many of the advances of the Civil War, the Fourteenth Amendment and the Civil Rights Acts. Indeed, I will argue that the judicial retardation of the egalitarian movement of the nation during and immediately after the Civil War had the effect of ossifying the progression towards civil rights and civil liberties in a manner far more dramatic than the political and social anti-egalitarian forces of the time could have hoped to achieve. Additionally, and centrally for the purposes of this Essay, those judicial decisions were instrumental in the reshaping of Twain's classic text.

Mitt Romney would be the nation's first Mormon president, if elected, but press has sometimes been confused about the history of Mormons in presidential politics. The Washington Monthlymust have (partially) corrected its story after the fact, since it states that Romney is "the first Mormon to run for president," but also mentions past candidate Oren Hatch. The World History Blog has a post trying to set the record straight. Joseph Smith, in 1844, was the first. (Maybe the Washington Monthly meant Romney is the first "articulate and bright and clean" Morman candidate?)

Saturday, February 17, 2007

I am soon to be overseas and most likely off-line for a few days. I will be giving a lecture at the Rothermere American Institute, University of Oxford. I would love to hear from U.K. readers about the best cafes and pubs in Oxford with WiFi. Oxford has its charms, but I've always found internet access in the college guest rooms to be scarce. Perhaps I should think of the absence of WiFi as one of the benefits of the trip...

I should be on-line a bit by the end of the week, since there is WiFi in London, even at the British Library. The week of February 26 will be back to normal.

Taken together...David S. Reynolds’s John Brown, Abolitionist: The man who killed slavery, sparked the Civil War, and seeded civil rights and Nicholas Lemann’s Redemption: The last battle of the Civil War suggest that Brown and the Redeemers may be more closely linked than historical memory allows. Both arose at moments when Evangelicals shaped politics and policy. In the antebellum era, abolitionists, fuelled by religious zeal, pushed the nation toward war. The Redeemers, though they interpreted Christianity and citizenship differently, were equally sure of their righteousness. They, too, cloaked ideology – visions of a racially pure state instead of Brown’s multiracial utopia – in Jesus’s humble raiment. Racial violence, moreover, perpetrated by slaveholders, some of whom later became Redeemers, drove Brown on his path to Harpers Ferry. And following the War, the Redeemers were outraged to see the South recast in an image that might have pleased John Brown.

Budiansky tells the story of the first use of military commissions by Americans during the Mexican-American War in 1846. General Winfield Scott ordered the use of commissions when his troops occupied Mexico. According to Budiansky,

Scott’s motive was equal parts necessity (maintaining public order) and shrewd politics (appealing to the Mexican population to cooperate with his forces). In place of arbitrary and raw power and summary justice at gunpoint, a system of impartial courts gave Mexicans the assurance that they would be treated fairly.

Scott in particular wanted to impress upon the civilians the contrast between American justice and the lawlessness they had endured when the Mexican forces led by Gen. Antonio López de Santa Anna rode through their villages, looting, raping and killing.

By the same token, Scott used military commissions to try — and punish — American soldiers who had committed crimes, including rape and theft, against local citizens. This, too, was not lost on the populace. General Orders No. 20 became the spark that ignited an international revolution in thinking about martial law. It established for the first time the principle that an occupation commander was subject to a higher legal authority, same as civilian government.

Jumping to the present, he argues, "It is a measure of how far we have come as a nation — and in values at one time widely held — that military commissions, once seen as a great stride forward for American principles of justice and the rule of law, will now for ever after be associated with the abridgement of rights."